Marriage of Ford, In re, 3-184A25

• Decision Date: 07 November 1984
• Docket Number: No. 3-184A25,3-184A25
• Parties: In re the MARRIAGE OF Carol M. FORD, Petitioner-Appellant, and Gregory L. Ford, Respondent-Appellee.
• Court: Indiana Appellate Court

Page 357

470 N.E.2d 357

In re the MARRIAGE OF Carol M. FORD, Petitioner-Appellant and Gregory L. Ford, Respondent-Appellee.

No. 3-184A25.

Court of Appeals of Indiana Third District.

Nov. 7, 1984.

Victor L. McFadden, South Bend, for petitioner-appellant.

Edward Olczak, South Bend, for respondent-appellee.

GARRARD, Judge.

On September 10, 1982 Carol M. Ford (the wife) filed a petition for the dissolution of her marriage to Gregory L. Ford (the husband). On August 31, 1983 the St. Joseph Superior Court entered judgment dissolving the marriage and granting custody of the couple's two minor children to the husband. The wife now appeals raising four issues for our review, which we restate as follows:

I. Whether the wife should be granted a new trial due to the ineffectiveness of her counsel at the first hearing held on the petition for dissolution.

II. Whether the court erred by restricting the scope of the wife's testimony at an evidentiary hearing held subsequent to the final hearing.

III. Whether the court erred by rejecting an agreement submitted by the parties.

IV. Whether the court's award of custody of the couple's two minor children to the husband constituted an abuse of discretion. ¹

A brief outline of the procedural history of this cause will help elucidate our discussion of the issues.

The record reveals the court set June 13, 1983 as the date for the final hearing of this cause. The hearing began with a statement from the wife's attorney, Harry Heppenheimer, stating that he and the husband's attorney had arrived at a tentative agreement subject to the court's approval. The agreement, as stated by the wife's attorney, provided that: The wife would advocate joint custody under IC 31-1-11.5-21(g) without opposition from the husband, the marital residence would be used by the husband for three years after which time the house would be sold, the proceeds of sale to be divided equally; there would be no maintenance order "... and there would be no support ordered in that [the wife] is unemployed at this time," Record at 182; personal property would be divided as agreed although the award of two items remained unresolved; the husband would pay the wife's counsel $250 in attorney's fees; the wife would have specific visitation rights; and the wife's maiden name would be restored.

The wife was called as a witness and testified that she was a resident of St. Joseph County, that the parties had two minor children, that they had separated and that their marriage was irretrievably broken down. She asked that the court approve the proposed property settlement. She answered in the affirmative when asked by her attorney whether she understood that her husband was "to have temporary custody of the children subject to conceivably the Court's application of the joint legal custody [doctrine] as set out by that statute ...." Record at 189. On cross-examination she indicated she was aware the court in making its custody order would consider a child custody study which had been conducted.

The husband also testified about the breakdown of the marriage and the provisions he had made for the care of the children. He agreed the proposed settlement was fair and equitable.

At the close of the hearing, the court found the marriage was irretrievably broken and ought to be dissolved, took under advisement the matter of the division of the property, and found the custody of the children should be awarded to the husband without provision for joint custody.

On June 22, 1983, the wife filed a petition asking the court to reconsider its custody finding, alleging that the child custody report submitted by the Domestic Relations Counselling Bureau was incomplete. The court denied the petition.

On July 7, 1983, the court granted Heppenheimer leave to withdraw as counsel for the wife. The following day, Victor McFadden made his first appearance on the wife's behalf. On August 9, 1983, he argued to the court that Heppenheimer had thought the court's findings of June 13, 1983 only granted temporary custody to the husband. He further argued the award of permanent custody was contrary to the proposed agreement and was not supported by sufficient evidence. McFadden also discussed the yet unresolved property division. The court agreed to set the cause for further hearing.

On August 18, 1983, the hearing was held and testimony was first offered by Sarah Steel, the counselor who had prepared the child custody report, and then by the wife and the husband. The court sustained the husband's objection to the wife's testimony concerning the custody issue. The court stated it would limit the wife's testimony to rebuttal of the statements made by Steel and to evidence concerning the two items of property left unresolved by the testimony at the June 13, 1983 hearing.

The court entered judgment on August 31, 1983, granting custody of the children to the husband, awarding the marital home to the husband, awarding the personal property to the party then in possession, granting the wife reasonable visitation and restoring the wife's maiden name.

I. Ineffective assistance of counsel.

The wife contends the ineffectiveness of her counsel at the first hearing denied her a fair trial, particularly in relation to the custody issue. She seeks a new trial asking this court to apply the "mockery of justice" standard to review her case as we would a criminal case. See Hemphill v. State (1984), Ind., 461 N.E.2d 126.

We have found no Indiana case considering the issue of ineffective assistance of counsel as a ground for a new trial in the civil context. However, other jurisdictions have addressed the issue with near unanimity that no such relief should be granted. The holdings of these cases can best be summarized in the statement of the Arizona Supreme Court in King v. Superior Court (1983), 138 Ariz. 147, 673 P.2d 787 "that a party's mere dissatisfaction with his own counsel or allegations of his own counsel's neglect, inadvertence, or mistake do not justify the granting of a new trial in civil cases." 673 P.2d at 791. See also Andrea Dumon, Inc. v. Pittway Corp. (1982), 110 Ill.App.3d 481, 66 Ill.Dec. 148, 442 N.E.2d 574; Engelbrechten v. Galvanoni & Nevy Bros., Inc. (1969), 60 Misc.2d 419, 302 N.Y.S.2d 691; Wilson v. Sherman (Okla.1969), 461 P.2d 606; Scheffer v. Chron (Tex.Civ.App.1977), 560 S.W.2d 419; Maltby v. Cox Construction Company, Inc. (Utah 1979), 598 P.2d 336, cert. denied 444 U.S. 945, 100 S.Ct. 306, 62 L.Ed.2d 314. The theory of the court in Scheffer v. Chron, supra, was that the client should be held responsible for the failure of counsel to properly develop available evidence at trial. Indiana cases reflect a similar position in the context of attempts to set aside default judgments, holding that the negligence of an attorney should be imputed to the client. Rose v. Rose (1979), 181 Ind.App. 98, 390 N.E.2d 1056; Moe v. Koe (1975), 165 Ind.App. 98, 330 N.E.2d 761.

The only case we have found reversing the judgment of the trial court and remanding for a new trial based on the incompetence of counsel is Garrett v. Osborn (1967), 164 Colo. 31, 431 P.2d 1012. In Garrett, the plaintiff, having received an adverse judgment, moved for a new trial based on the inadequacy of his legal representation. The Colorado Supreme Court, in reversing the lower court's denial of that motion, stated:

"Examination of the full record shows conclusively that the lawyer purporting to represent Garrett utterly failed to adequately represent his interest in the controversy.... The shortcomings in the conduct of counsel for Garrett are so flagrant and so numerous that a fair trial of the case was denied his client. When lack of adequate representation was made a ground for granting a motion for a new trial, and the court found as a fact that Garrett's case was not adequately presented, a new trial should have been granted.

There can be no doubt that the substantive rights of Garrett were adversely affected by the palpable malfeasance, misfeasance and nonfeasance of his counsel."

431 P.2d at 1013.

Two other courts, while not granting a new trial in the particular case, have recognized that such relief might be granted where clear injustice has resulted from the incompetence of counsel. See Jennings v. Stoker (Utah 1982), 652 P.2d 912; Maltby v. Cox Construction Company, Inc. (Utah 1979), 598 P.2d 336 (Crockett, C.J., concurring), cert. denied 444 U.S. 945, 100 S.Ct. 306, 62 L.Ed.2d 314.

We, however, agree with the majority of the decisions which have denied the remedy of a new trial where a party contends the incompetence of his or her counsel has impinged upon the party's right to a fair trial. As was the majority of the Utah Supreme Court in Maltby, supra, we are persuaded by the language used by the Oklahoma Supreme Court in Wilson v. Sherman (Okla.1969), 461 P.2d 606, 610:

"While perhaps as an abstract proposition of law it may be possible to grant a new trial in civil litigation upon the ground that one of the parties was prevented from having a fair trial because of alleged negligence on the part of his attorney, we know of no such rule having been recognized in this, or any other jurisdiction for that matter. Defendants cite no cases. Furthermore, it would seem unfair and harsh to thus penalize the other side in the litigation by requiring him to again present his cause to another jury in a new trial."

Assuming Heppenheimer was negligent in his representation of the wife, the wife seeks to have the husband shoulder the burden of that negligence by forcing him to relitigate issues already fully considered by the court. In criminal prosecutions, we routinely consider claims of incompetence of counsel. There the grant of a new trial to a defendant is a burden on the state but is nonetheless a burden necessarily accepted by the state consistent with the constitutional guarantee that a criminal defendant will be afforded the effective assistance...